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What Counts as a Rational Basis To Pass a Symbolic Law?

Having read Judge Reinhardt’s opinion in Perry v. Brown, it seems to me that the weight of the analysis hinges on an interesting question: What counts as a rational basis to enact a symbolic law? Reinhardt’s basic reasoning is that Prop 8 is unconstitutional because it was merely symbolic. The ballot initiative didn’t do anything substantive: It amended the California Constitution to say that “Only marriage between a man and a woman is valid or recognized in California,” but it left in place domestic partnerships with most or all the rights of marriage.

According to Reinhardt’s opinion, this dooms Prop 8. The rational basis test requires some theoretical reason to think that the Amendment might improve society in some way. The gist of Reinhardt’s opinion is that a symbolic law like Prop 8 can’t improve society because it doesn’t make any actual difference. As a result, even if there are lots of rational reasons to ban same-sex marriage generally, it is irrational to forbid only the symbolism of the word “marriage.” Finding no rational utilitarian reason to forbid the word “marriage,” Reinhardt concludes that the law fails the rational basis test and must have been passed to express animus towards or disapproval of homosexuality.

I don’t find this argument persuasive. Prop 8 was a direct response to a judicial decision by the California Supreme Court. One rational reason to support a symbolic law like Prop 8 would be to issue a rebuke to the California Supreme Court that issued that decision, with the hope that such a public rebuke might influence the Court’s decisions in the future. Different people will disagree on whether this argument is persuasive, but I think it satisfies the rational basis test.

To see this, imagine you’re a California voter and you’re not sure if you think the state should recognize same-sex marriage. Then the California Supreme Court hands down the Marriage Cases, announcing by judicial fiat that the state constitution protects same-sex marriage. “There goes that activist California Supreme Court again,” you think to yourself, “interfering with the rights of the people to pass laws the democratic way.” You decide you want to teach the Justices a lesson. How can you do it? One way is the Rose Bird strategy: You can wait until a future retention election and vote the Justices out of office. But a second way is to support a voter initiative overturning the decision, even if only as a symbol that the California Supreme Court overstepped its bounds.

This is not only a hypothetical. Although I’m no expert on Prop 8, a quick google search confirms that this argument was made by at least some influential supporters of Prop 8. Here’s Newt Gingrich making the case that Californians should support Prop 8 to stop the imperial tyranny of activist judges and to restore democracy in California:

Different people will disagree on whether Gingrich’s argument is persuasive. But I would think the argument is at least rational under the standards of the rational basis test. And it doesn’t seem to have anything to do with animus towards or disapproval of homosexuality.